Operations of the Family Courts - Justice Committee Contents

Supplementary evidence from the Ministry of Justice (FC 68)


1.  Mr Djanolgy offered to provide more information on expert witnesses in 9.5 private cases:

(a)  He said that legal aid would be available in cases of domestic violence. Our understanding is that expert fees are split between all parties. Will legal aid be available for the alleged perpetrators of domestic violence to cover their share of the expert fees? What happens if the alleged perpetrator cannot afford the fees?

In the consultation, we proposed that legal aid should be available for the client at risk in private family law cases where there is evidence of domestic violence. Under the consultation proposals, legal aid would not be available for the abusive party or for their share of the costs of expert assessments. We considered that it would be perverse to continue to make legal aid available in family cases to those who commit domestic violence when we are proposing to remove it for most people. There will currently be instances where parties who are not legally-aided are unable to pay for all or part of expert reports. We are currently considering the responses to the consultation.

(b)  What about rule 9.5 cases that do not involve domestic violence, for example where a parent has learning difficulties which affect their ability to care for a child, or where neglect is alleged? What happens if one or more parties cannot afford the fees?

Where a child has separate representation, legal aid could cover a proportion of the costs of expert assessments, depending on the circumstances of the case. Under the consultation proposals, legal aid would no longer be available for the parents' share of the costs of expert assessments. Under the proposals, exceptional funding would be available for individual out of scope cases where legal aid was required in order to meet our domestic and international legal obligations. We are considering this issue, along with other points made in responses to the consultation.

(c)  Would allegations of sexual abuse meet the criteria for domestic violence?

Under the consultation proposals, legal aid would be available for victims of domestic violence in private family law cases. In order to prevent unfounded allegations of domestic violence for the purpose of obtaining legal aid, we proposed that clear objective evidence of domestic violence would be required. In the consultation, we suggested some circumstances that would provide such evidence, and sought views on whether there were other circumstances that would present objective evidence. The circumstances we suggested in the consultation included injunctions and criminal convictions, which might apply in cases of sexual abuse, but in general allegations of sexual abuse would not meet the criteria as proposed. Again, we are considering this point.

(d)  Mr Djanogly talked about judges asking for funding for expert witnesses however judges told us that "I have had the very frustrating experience at first instance when I have ordered separate representation and been told by the Legal Services Commission that there is not the funding to produce it."And that "There is no provision or funding for special advocates to be appointed in the family arena. They are very, very rare indeed and wholly in the discretion of the Treasury Solicitor." These quotes are about funding for representation not experts, is the situation different for experts?

In general, funding for children joined as parties to proceedings is available in both private and public law matters, subject to the usual Funding Code criteria. However, the Legal Services Commission is willing to investigate any specific examples of refusal to provide funding for separate representation.

Special Advocates are appointed at the discretion of the Attorney General (not the Treasury Solicitor). Where Special Advocates are appointed they are generally funded by the party relying on Closed material (material relating to matters of national security), not by the Legal Services Commission. However. there is precedent for Special Advocates being funded by the Attorney General's Office in family cases. This money comes from the Treasury Solicitor's vote. There are no circumstances envisaged where the Legal Services Commission would fund Special Advocates.

The question also raises the issue of circumstances where the Court directs use of an expert. In some cases a court may direct that a certain expert prepare a report in a case. Whilst that direction may have been made by the court, it is still appropriate that a final assessment of costs is completed at the conclusion of a case. This may be conducted by the Legal Services Commission as the paying authority or by a court where detailed assessment by the court is appropriate. The assessment will consider both the rate claimed, the nature of the work done and the number of hours actually completed by the expert. The costs claimed at the conclusion of the case may, for example, differ from the estimated costs agreed earlier in the proceeding as the circumstances of the case may have changed.

2.  Mr. Djanogly said that "The evidence actually shows that, in some types of case, having litigants in person on both sides may reduce the time taken in court."Can you supply the Committee with this evidence? (the Department has previously supplied the Committee with information about case duration, but not court time).

When I appeared before the Committee, I was referring to overall case duration in cases involving parties without a recorded representative (the information my department supplied to the Committee in February). In general terms, we would expect that cases of greater duration would have a higher number of court hearings and therefore use more court time, but we do not have robust management information on this point.

3.  Mr. Djanogly offered to provide details of how the Department had reached the figure of 3,300 extra publically funded mediations. (National Audit Office research in 2007 found that 14% of litigants were not offered mediation and would have tried it if they had, which would suggest around 28,000 extra publically funded mediations).

These were initial assessments, based on increases in both the proportion of cases entering mediation and the proportion of those cases that reach agreement. My officials are now updating these assessments in light of consultation responses.

Solicitors are required to refer clients who want to be publicly funded by the Legal Services Commission to consider the use of mediation if they wish to issue court proceedings. A solicitor can exempt a client in certain circumstances, such as where there is domestic violence. Since the National Audit Office's study was carried out, the Ministry of Justice and the Legal Services Commission have worked with legal practitioners to ensure that as many clients as possible consider mediation and that exemptions are only used when they are appropriate. The exemptions have also been streamlined to ensure that as many clients attend the assessment meeting as possible.

We would expect the number of publicly funded parties who would be willing to try mediation to be higher than the number of cases that reach agreement as some cases may not be suitable for mediation, in some cases the other party may not be willing to engage in mediation, and some clients that enter mediation may not reach agreement.

Mr. Gummer asked:

"If more expert witnesses are to come from panels supplied by the NHS but the NHS are saying that the rates are now beneath those which are affordable to lead consultants, is it not going to make it difficult to draw expert witnesses from the NHS"

Mr. Djanogly said that: "I understand that staff employed by NHS trusts who undertake expert witness work generally do so independently and are instructed and paid directly. So we do not see that as a problem."

4.  Could you confirm that the Interdisciplinary Panels envisaged in the Family Justice Review would not be paid through the NHS? The Family Justice Review also talked about the `Alternative Commissioning of Experts' pilot. Does this involve paying experts through the NHS? Could we have any more details about this pilot?

Further work will be done by the Family Justice Review on possible models for the proposed interdisciplinary expert teams suggested in its interim report. This will take into account responses to the consultation on the interim report as well as evidence emerging from the Alternative Commissioning of Experts (ACE) pilot. As a result it would be premature at this stage to detail the precise shape of teams or funding arrangements. The Review will be publishing its final report in the autumn of 2011.

The rates paid for work completed under the ACE pilot were agreed individually with the teams involved, prior to commencement of contracts, and are commercially sensitive. Payment for work completed under the pilot is made directly from the Legal Services Commission to the pilot teams.

The ACE pilot was launched to test the effectiveness of the direct commissioning of jointly instructed multi-disciplinary teams of health expert witnesses in public law childcare proceedings.

The pilot followed the consultation on the Chief Medical Officer's report, Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases.

The aim of the pilot was to test the effectiveness of this approach to procuring expert witness services in achieving the following benefits:

—  easier for health professionals to get engaged as health expert witnesses

—  sustainable increase in the supply of quality-assured expert witnesses

—  easier and quicker for solicitors and clients to access health expert witnesses

—  fewer delays in the provision of expert reports for the benefit of the child

—  improved quality-assurance through peer review and multi-disciplinary input

—  best use of public funds.

The pilot commenced with a staggered start from April 2009 and six teams from the NHS and private sector signed up to participate. All six teams had a core of psychiatrists and psychologists, with other health experts also available if required.

The pilot stopped accepting cases in September 2010 and Cardiff Law School is currently conducting an independent evaluation of the effectiveness of the pilot approach. A draft version of the evaluation report will be delivered to the Legal Services Commission on 30 June 2011 and it is anticipated that the final report will be published by the Legal Services Commission later in summer 2011.

5.  Mr Djanogly said that "Yes, we can get savings for the taxpayer, and, yes, we also believe that for the majority there will be a better outcome through alternative procedures such as conciliation or mediation, where the evidence suggests that the costs are cheaper—literally one-fifth of going to court—and the time taken to take the case through is much quicker as well." Could you supply us with these figures?

Mediation is often cheaper than going to court - data from Legal Aid cases show the average cost per client of mediation is £535 compared to £2,823 for cases going to court.

May 2011

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Prepared 14 July 2011